Bad News, It Looks Like At Least Two of Texas’ Paid Sick Leave Ordinances Are About to Go Into Effect

You may recall that San Antonio, Dallas and Austin have enacted ordinances requiring employers to provide employees with paid sick leave. We thought that the Texas legislature was going to enact a law prohibiting such local ordinances. Bad news, the Texas legislative session closed with the Bill still stuck in committee. This means that the paid sick leave ordinances in San Antonio and Dallas are scheduled to take effect on August 1, 2019. Absent a Special Session, there is no other procedural method to revive the Bill, and the Texas Legislature will not have an opportunity to address the sick leave preemption issue until the next session in January 2021.

A court may intervene and enjoin one of more of the ordinances, but it would have to move quickly, with the San Antonio and Dallas ordinances are slated to take effect on August 1, 2019. There is currently an injunction in place preventing the enforcement of the Austin ordinance. The City of Austin has appealed to the Texas Supreme Court, where even if the court decides to review the appeal, a final decision is still months away.

It is very likely that similar lawsuits will be filed against San Antonio and Dallas within the next 30 days, seeking to enjoin those cities’ ordinances from taking effect. It is questionable, however, whether there will be sufficient time for the courts to rule on any motions seeking preliminary injunctions before the August 1, 2019, effective date.

The leadership in San Antonio and/or Dallas could delay the effective dates of their respective ordinances until the Texas Supreme Court rules on the injunction against the Austin ordinance. However, thus far it appears as if Dallas and San Antonio intend to forge ahead and enforce their ordinances on August 1, 2019.

Even if the ordinances’ effective dates are not delayed, either voluntarily or through litigation, portions of the laws will not be effective until April 1, 2020. For example, the Dallas ordinance specifies that no penalties will be assessed for violations until April 1, 2020, except violations of the ordinance’s anti-retaliation provision. The San Antonio ordinance is not as explicit in removing the threat of civil penalties, but it does state that violations occurring after the effective date but before April 1, 2020, the Health Department “may” issue a “notice” that a civil penalty may be assessed on or after April 1, 2020.

Considering the uncertainty of the application and enforcement of these ordinances, employers in the covered areas should immediately consider (1) developing leave policies and procedures and (2) determining the timing and rolling out of such policies.

Regardless of an employer’s immediate steps, it would be wise to set reminders to review the status of the applicable ordinances and to be prepared to roll out a compliant leave program as required by the August 1, 2019, effective date.